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In the present essay I compare the 2016 judgment of the International Court of
Justice (ICJ) in Nuclear Arms
Race (Marshall Islands v. United Kingdom) with the Court's 1966
judgment in South West
Africa (Ethiopia v. South Africa; Liberia v. South Africa). A series
of similarities between the two judgments are obvious: They are two of the three
cases in the history of the Court in which the judges were equally split and the
President had to cast his tie-breaking vote.
The critique of the judgments has been exceptionally strong, in 2016 as in 1966.
The core of the critique, then as now, has practically been the same—the
Court retreats into an excessive formalism that protects great powers.
The International Court of Justice (ICJ)’s 2016 judgments on the three
cases Obligations concerning negotiations relating to cessation of the
nuclear arms race and to nuclear disarmament show the omnipresence
of the dichotomy between form and substance in the Court's case-law.
Commentators and several dissenting judges have stressed that the judgments
represent a landmark in the sense that the Court has radically
departed from the consideration of flexible standards in applying
procedural rules to the determination of the issue of identification of a legal
dispute. In other words, it made form prevail over substance.
My very first publication, admittedly written in a language that many AJIL
Unbound readers might be unable or unwilling to read, was an essay on the Treaty
on the Non-Proliferation of Nuclear Weapons (NPT) and its effects
vis-à-vis third parties. Already back then, I found it difficult to
justify how an international treaty could rubber-stamp such a highly uneven
state of affairs. The overt acknowledgement of the discrimination between
nuclear and nonnuclear states, the hypocrisy about “unofficial”
nuclear states, and the Article VI obligation for nuclear states to negotiate
effective measures of disarmament, largely ignored in the first twenty years of
the treaty, were all elements that contributed to my perception of unfairness,
if not blatant injustice. As a young researcher approaching international law
with the enthusiasm of the neophyte, however, this looked like a little anomaly
in an otherwise fair and equitable international legal order. It did not set off
warning bells about the system as such. After all, international law was geared,
at least in my eyes, towards enhancing the wellbeing of humanity. It must have
been so. And it is not that I leaned particularly on the idealistic side; it
seemed normal to me … at the time.
Although caution must be exercised in attributing a policy to the International
Court of Justice, it is difficult not to see the Marshall
Islands judgments as part of a longer trend of the Court using
formalistic reasoning to decline cases concerning nuclear weapons.
The International Court of Justice (ICJ) has mostly emphasized substance over
form and developed a pragmatic, flexible, objective, and fact-based analytical
approach to jurisdiction. That is until a recent series of judgments veering
towards jurisdictional formalism. However, to truly reflect its designation as
the “World” Court, the UN's principal judicial organ must
surely adjudicate some of the “big cases” with global security
implications and involving important obligations erga omnes
beyond strictly bilateral dynamics: the Marshall Islands cases
were as good contenders as any for the Court to enhance its legitimacy
capital.1 As a
corollary, accepting this role might entail that the Court interpret its
jurisdiction in a flexible and progressive manner, which had always been its
mantra up until recently, so that the “big cases” have a chance of
getting their foot in the door and being litigated.